Opinion
D071929
09-14-2017
In re DESTINY D., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. BENJAMIN D., Defendant and Appellant.
Brian M. Mahoney, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J519471) APPEAL from a judgment of the Superior Court of San Diego County, Kimberlee A. Lagotta, Judge. Dismissed. Brian M. Mahoney, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
Benjamin D. appeals the judgment entered following the jurisdiction and disposition hearing in the juvenile dependency case of his minor daughter Destiny D. He contends the juvenile court erred by allegedly making a true finding "against him" under Welfare and Institutions Code section 300, subdivision (e). We disagree with Benjamin's interpretation of the court's findings. And, even taking Benjamin's arguments on their own terms, he has failed to raise any justiciable issue. We will therefore dismiss his appeal.
Further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On December 19, 2016, the San Diego County Health and Human Services Agency (Agency) petitioned the juvenile court under section 300, subdivision (e) on behalf of five-month-old Destiny. The Agency's allegation read in full as follows: "COUNT 01: On or about November 20, 2016, this infant, who was just four months of age, suffered severe physical abuse, including second degree burns to nearly 50% of her body inflicted by her mother that if left untreated would have caused death. As a result, this infant is in need of protection of the Juvenile Court."
Destiny's parents, Benjamin and S.D., told the Agency that the burns occurred when S.D. was bathing Destiny. S.D. ran a bath for Destiny while Benjamin watched television in the other room. S.D. checked the water before placing Destiny in the bath. She reported the water was warm. When S.D. put Destiny in the bath, she started screaming and S.D. removed her from the water within two seconds. The parents noticed burns on Destiny's skin. Benjamin tested the water and reported that it was "not hot, very warm." Benjamin and S.D. took Destiny to the emergency room, where she was treated for severe burns. She remained in the hospital for over two months. As a result of the burns, and subsequent complications, Destiny suffered significant neurological damage.
After examining Destiny's burns, physician Premi Suresh told the Agency that the parents' story was implausible because warm water could not have caused such a severe burn. Another physician explained that Destiny's injury was most likely the result of nonaccidental trauma.
At Destiny's detention hearing, the juvenile court found that the Agency had made a prima facie showing under section 300, subdivision (e). It ordered Destiny detained in out-of-home care. After her release from the hospital, she was placed in foster care.
In advance of the jurisdiction and disposition hearing, the Agency recommended that the court find the allegations of the petition true, continue Destiny's placement in out-of-home care, and order reunification services for both Benjamin and S.D. Based on the implausibility of the parents' statements, the Agency believed that Destiny had suffered from inflicted child abuse.
The parents maintained that Destiny's injuries were accidental. They completed a parenting course, but they refused to participate in a child abuse group because they did not believe it would benefit them. And, although Benjamin's visits with Destiny were positive, it was unclear whether he was able to provide Destiny with the 24-hour care she required.
At the jurisdiction and disposition hearing, the court received medical records and several Agency reports into evidence. It also heard testimony from Suresh and an Agency social worker. Suresh explained that she was a pediatrician with experience in child abuse and neglect. She had a "significant concern" that Destiny's burns were intentionally inflicted based on the implausibility of the parents' statements. She did not believe it was possible that an adult could have put Destiny in a bath that could cause second degree burns without feeling pain when the adult's hand touched the water. The Agency social worker described Destiny's condition, the parents' visitation, and the reasoning behind the Agency's recommendation that the parents participate in a child abuse group. As to Benjamin, the social worker explained that the child abuse group would be important to help him identify "red flags" to help prevent child abuse.
The Agency's counsel asked the court to make a true finding on the petition under section 300, subdivision (e) by clear and convincing evidence. She argued, "In this case, we clearly have all three factors that the child was under five, that the injury was caused by the mother, and that the physical abuse does meet the criteria to be severe physical abuse under the statute." Destiny's counsel joined in the Agency's arguments.
S.D.'s counsel maintained that the Agency had not proven the truth of the petition's allegations. She argued that Destiny's burns were the result of an accident, not child abuse. Benjamin's counsel agreed. He argued there was no evidence that S.D. and Benjamin were "child abuser[s]" or that anyone intentionally hurt Destiny.
In rebuttal, the Agency's counsel argued that Destiny's burns could not have been the result of the accident based on the medical and scientific evidence. She explained, "We are saying that an act of child abuse occurred to Destiny, that it was an act of child abuse by the parents, and that they receive certain -- need to receive services to address that."
The juvenile court found, by clear and convincing evidence, that the allegations of the petition were true and that Destiny was a person described by section 300, subdivision (e). The court based its finding on the medical evidence and on the parents' statements, which were not consistent with the conclusion that Destiny was accidentally burned. The parents did not claim, for example, that the water was too hot but they did not realize it. They claimed the water was not hot at all. The court found that S.D. committed an act of serious physical abuse against Destiny by intentionally filling the bath with water that was too hot for the infant. As to Benjamin, the court believed his statement that the water was not too hot to be indicative of "consciousness of guilt in covering for the mother in failing to protect the child, and knowledge that this was an intentional physical act of abuse. However, it was to cover to the mother's serious abuse to this child."
The court ordered Destiny removed from her parents' care under section 361, subdivision (c)(1). It found as follows: "[S.D.] inflicted serious physical abuse on this child. [Benjamin] failed to protect. Neither parent is in a position at this time to have placement of the minor, and I do find that it is a danger to the physical and emotional well-being of this child to be placed with either parent."
The court adopted the Agency's proposed case plan, including participation in a child abuse group. The court explained, "It is clear that both of the parents['] actions in this case provide a sufficient nexus to include a child abuse group [in] their case plan. The child abuse group does include both parenting tips and resources but, most importantly, addresses the dynamics of child abuse, the red flags or warning signs of child abuse, future prevention of child abuse, detection of child abuse, and looks at the underlying causes for the child abuse."
In its minute order following the hearing, the court made the following jurisdictional findings: "The petition is sustained and the Court makes a true finding on WI300(E) count 01 for [S.D.]. [¶] The petition is sustained and the Court makes a true finding on WI300(E) count 01 for [Benjamin]. [¶] These findings were made by clear and convincing evidence. TRUE FINDING WAS MADE ON PETITION." The minute order indicated that the court explained the factual basis for the findings on the record at the hearing. The minute order further reflected the court's findings and orders regarding removal, visitation, and reunification services. Benjamin appeals.
DISCUSSION
I
Benjamin raises two issues on appeal: (1) that the juvenile court violated his due process rights by making a jurisdictional finding "against him" under section 300, subdivision (e) in the absence of any allegations against him in the Agency's petition and (2) that the evidence does not support the jurisdictional finding "against him" under the statute. Benjamin's appeal rests on the premise that the juvenile court made the challenged finding, i.e., that Benjamin's own conduct constituted an independent basis for jurisdiction under section 300, subdivision (e).
As an initial matter, we disagree with Benjamin's interpretation of the proceedings below. "Although reviewing courts sometimes speak of jurisdictional findings being made 'as to' a particular parent [citation], the dependency court does not, in fact, make jurisdictional findings 'as to' a particular parent. The findings ordinarily involve the conduct, or lack thereof, of one or both parents, but the findings are made with respect to the child, not the parents." (In re I.A. (2011) 201 Cal.App.4th 1484, 1493, fn. 6 (I.A.).) "The juvenile court exercises jurisdiction with respect to a child when the child has been endangered in any manner described by section 300; it acquires personal jurisdiction over the child's parents through proper notice." (In re Christopher M. (2014) 228 Cal.App.4th 1310, 1316.) The court's jurisdiction over a child's parents, and its ability to adjudicate their parental rights, is derivative of the court's jurisdiction over the minor and is unrelated to a parent's role, if any, in creating the conditions justifying jurisdiction over the child under section 300. (Christopher M., at p. 1316.)
Here, it is undisputed that the Agency's petition relied solely on allegations concerning S.D.'s conduct to assert jurisdiction over Destiny. The Agency's counsel argued that jurisdiction was based on her conduct. And, to the extent they disputed jurisdiction, S.D. and Benjamin's counsel also discussed S.D.'s conduct. The juvenile court's true finding on the Agency's petition was necessarily limited to the allegations of that petition, which solely implicated S.D. Under these circumstances, we do not believe the court made an independent finding of jurisdiction based on Benjamin's conduct.
Benjamin points to the court's comments during the jurisdiction and disposition hearing, where the court criticized Benjamin. The court believed his statement that the water was not too hot to be indicative of "consciousness of guilt in covering for the mother in failing to protect the child, and knowledge that this was an intentional physical act of abuse. However, it was to cover for the mother's serious abuse to this child." We do not interpret the court's comments as making a finding under section 300, subdivision (e) based on Benjamin's conduct. Instead, after articulating its conclusion based on the evidence that S.D. "intentionally set the water at a setting that was too hot for the infant to be bathed in the tub and, in doing so, caused severe physical abuse to her child," the court assessed first S.D.'s statements and then Benjamin's statements to determine their effect on the court's analysis. The court concluded that the parents' statements supported, rather than undermined, the case for taking jurisdiction. Specifically, Benjamin's statements showed that he knew S.D. had intentionally burned Destiny, supporting jurisdiction based on her conduct—not his.
Benjamin also points to the court's minute order, which describes the court's findings as follows: "The petition is sustained and the Court makes a true finding on WI300(E) count 01 for [S.D.]. [¶] The petition is sustained and the Court makes a true finding on WI300(E) count 01 for [Benjamin]. [¶] These findings were made by clear and convincing evidence. TRUE FINDING WAS MADE ON PETITION." While somewhat confusing, the minute order also does not show that the court made an independent jurisdictional finding based on Benjamin's conduct. The court explicitly references the allegations in count 1 of the petition, which was solely based on S.D.'s conduct. Given the court's comments at the hearing, and the contents of the Agency's petition, we will not presume the court went beyond the petition to make jurisdictional findings that were requested by no one.
II
Even assuming the court had made an independent finding under section 300, subdivision (e) based solely on Benjamin's conduct, we conclude his appeal must be dismissed because he has not raised a justiciable issue. "It is a fundamental principle of appellate practice that an appeal will not be entertained unless it presents a justiciable issue." (I.A., supra, 201 Cal.App.4th at p. 1489.) "An important requirement for justiciability is the availability of 'effective' relief—that is, the prospect of a remedy that can have a practical, tangible impact on the parties' conduct or legal status." (Id. at p. 1490.) "When the court cannot grant effective relief to the parties to an appeal, the appeal must be dismissed." (Ibid.)
Benjamin does not dispute that the juvenile court properly exercised jurisdiction over Destiny based on S.D.'s conduct. As such, even if we agree that a finding of jurisdiction based on Benjamin's conduct alone was improper or unsupported by the evidence, we cannot reverse the court's jurisdictional order. Benjamin does not challenge the court's dispositional order removing Destiny from his care, so that order too will not be reversed, regardless of the merit of Benjamin's arguments. Because these orders will remain in force, "we cannot render any relief to [Benjamin] that would have a practical tangible impact on his position in the dependency proceeding." (I.A., supra, 201 Cal.App.4th at p. 1492.)
We have the discretion, however, to review the merits of Benjamin's arguments under certain circumstances. "[W]e generally will exercise our discretion and reach the merits of a challenge to any jurisdictional finding when the finding (1) serves as the basis for dispositional orders that are also challenged on appeal [citation]; (2) could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings [citations]; or (3) 'could have other consequences for [the appellant], beyond jurisdiction' [citation]." (In re Drake M. (2012) 211 Cal.App.4th 754, 762-763 (Drake M.).)
Benjamin has not shown that any of the circumstances identified by Drake M. are present in this appeal. Benjamin does not challenge the court's dispositional order, so the first circumstance is inapplicable. As to the second, Benjamin argues that he and S.D. intend to have additional children. He claims a jurisdictional finding involving him "could jeopardize his ability to obtain reunification services and reunify" with those future children if a dependency case were filed. But such a claim is " 'highly speculative,' " and Benjamin does not "suggest any way in which [a jurisdictional] finding actually could affect a future dependency or family law proceeding . . . . In any future dependency proceeding, a finding of jurisdiction must be based on current conditions." (I.A., supra, 201 Cal.App.4th at pp. 1494, 1495.) Third, Benjamin asserts that he has taken emergency medical technician (EMT) classes at some point in the past and "[i]f" he were to pursue a career as an EMT, the jurisdictional finding would make him ineligible for employment. Benjamin's argument is doubly speculative. He has not shown it is likely he will pursue such a career, and he has not shown—beyond his counsel's unsupported assertions—that a jurisdictional finding in this dependency proceeding will have any effect on his employability. Benjamin has not shown any threatened prejudice from the jurisdictional finding, so we will not exercise our discretion to review it, either as a challenge to the allegations of the petition or a challenge to the sufficiency of the evidence. (See ibid.)
Benjamin asserts that a jurisdictional finding based on his conduct would render him an "offending" parent (versus a "nonoffending" one), but he does not explain how that would affect his position in the dependency proceedings, especially given his failure to challenge the court's dispositional order.
DISPOSITION
The appeal is dismissed.
IRION, J. WE CONCUR: MCCONNELL, P. J. HUFFMAN, J.